In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-1804

PAUL MODROWSKI,

 Petitioner-Appellant,

v.

STEPHEN D. MOTE,

 Respondent-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01 C 4183—Blanche M. Manning, Judge.

____________

ARGUED JANUARY 29, 2003—DECIDED MARCH 10, 2003

____________

Before COFFEY, EASTERBROOK, and KANNE, Circuit

Judges.

KANNE, Circuit Judge. Paul Modrowski, an Illinois prisoner serving a life sentence for murder, hired an attorney

to file a petition under 28 U.S.C. § 2254 on his behalf, but

the attorney filed the petition one day late. The attorney

claimed that a series of physical and mental ailments

prevented him from working on the petition and filing it on

time. The district court rejected counsel’s equitable tolling

argument and dismissed the untimely petition. On appeal

Modrowski argues that the filing deadline for § 2254

petitions can be equitably tolled for an attorney’s incapacity. We affirm the dismissal of Modrowski’s § 2254 petition

as untimely because an attorney’s failure to act as a result
2 No. 02-1804

1 Modrowski’s conviction became final on direct review on October

6, 1998, when the Illinois Supreme Court denied leave to appeal.

Modrowski filed his post-conviction action on May 29, 1998, before

his conviction became final. Therefore, the statute of limitations

was tolled under § 2244(d)(2) until May 31, 2000, when the Illinois

Supreme Court again denied leave to appeal. 

of incapacity is analogous to an attorney’s failure to act as

a result of negligence, for which we do not permit equitable

tolling.

Modrowski exhausted his state court remedies on May 31,

2000.1

 Therefore, his § 2254 petition was due on May 31,

2001. See United States v. Marcello, 212 F.3d 1005, 1010

(7th Cir. 2000). The district court received Modrowski’s

petition one day late on June 1. The petition was unsigned,

missing the filing fee and exhibits, and had blank paragraphs where many of Modrowski’s constitutional claims

should have been. Modrowski’s attorney amended the

petition on July 5, 2001, but the district court dismissed the

petition as untimely, concluding that it lacked discretion to

equitably toll the filing deadline for attorney negligence.

Modrowski, through new counsel, filed a timely Fed. R.

Civ. P. 59 motion, arguing that his original attorney’s personal and psychological difficulties prevented that attorney

from filing the petition on time and justified equitable

tolling. In an affidavit attached to the motion, original

counsel alleged that depression, physical illnesses, the

death of his father, and the disintegration of his law practice impeded his work in the year leading up to the petition’s due date and prevented him from bringing the

petition to the courthouse on time.

For purposes of its decision, the district court assumed

that Modrowski had exercised reasonable diligence in

attempting to have his petition filed on time and that his

attorney had been mentally incapacitated, but denied the
No. 02-1804 3

2 Because we ultimately conclude that attorney incapacity is not

an appropriate ground for equitable tolling, we once again reserve

the question whether the filing deadline for § 2254 petitions is

ever subject to equitable tolling. We have held that the limitation

period for motions under § 2255 is subject to equitable tolling,

Marcello, 212 F.3d at 1010, but we have never decided the question conclusively for § 2254 petitions, see Lloyd v. VanNatta, 296

F.3d 630, 633 (7th Cir. 2002). 

3 We note further, however, that evidence of Modrowski’s original

attorney’s alleged incapacity is scant because the district court did

not hold a evidentiary hearing on the matter. 

motion, likening attorney incapacity to attorney negligence.

Modrowski timely appealed, and the district court granted

a certificate of appealability on the equitable tolling question and on all but one of Modrowski’s substantive claims.

The Rule 59 motion brings the underlying dismissal of

Modrowski’s petition before us on appeal, see Kunik v.

Racine Cy., Wis., 106 F.3d 168, 173 (7th Cir. 1997), and we

review the dismissal de novo, Wilson v. Battles, 302 F.3d

745, 747 (7th Cir. 2002). The central issue is whether the

filing deadline for § 2254 petitions, 28 U.S.C. § 2244(d)(1),

can be equitably tolled on account of attorney incapacity.2

The question is one of first impression in this circuit. As

noted, the district court assumed, without deciding, that

Modrowski’s original counsel was actually incapacitated,

and we will assume the same for purposes of this opinion.3

Equitable tolling excuses an untimely filing when “[e]xtraordinary circumstances far beyond the litigant’s control

. . . prevented timely filing.” Marcello, 212 F.3d at 1010. We

rarely deem equitable tolling appropriate—in fact, we have

yet to identify a circumstance that justifies equitable tolling

in the collateral relief context. See, e.g., Lloyd, 296 F.3d at

633 (prisoner’s lack of access to trial transcript does not

warrant equitable tolling); Montenegro v. United States, 248

F.3d 585, 594 (7th Cir. 2001) (equitable tolling not justified
4 No. 02-1804

by lack of response from attorney, language barrier, lack of

legal knowledge, and transfer between prisons), overruled

on other grounds by Ashley v. United States, 266 F.3d 671

(7th Cir. 2001); Marcello, 212 F.3d at 1010 (equitable tolling

not warranted by unclear law and death of attorney’s

father); see also Brooks v. Walls, 279 F.3d 518, 525 (7th Cir.

2002) (noting that little room remains for tolling unless the

petitioner falls within one of the statutorily provided circumstances for tolling in 28 U.S.C. § 2244(d)). But cf. Johnson v. McCaughtry, 265 F.3d 559, 567-68 (7th Cir. 2001)

(Evans, J., dissenting) (equitable tolling justified by petition

filed mistakenly in wrong forum by prisoner’s attorney).

We have never considered whether attorney incapacity is

grounds for equitable tolling. But we, and numerous other

courts, have held that attorney negligence is not grounds for

equitable tolling. See Beery v. Ault, 312 F.3d 948, 951 (8th

Cir. 2002); Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir.

2002); Ford v. Hubbard, 305 F.3d 875, 890 (9th Cir. 2002);

Wilson, 302 F.3d at 748; Smaldone v. Senkowski, 273 F.3d

133, 138 (2d Cir. 2001); Steed v. Head, 219 F.3d 1298, 1300

(11th Cir. 2000); Harris v. Hutchinson, 209 F.3d 325, 330-31

(4th Cir. 2000); Taliani v. Chrans, 189 F.3d 597, 598 (7th

Cir. 1999). The rationale is that attorney negligence is not

extraordinary and clients, even if incarcerated, must “vigilantly oversee,” and ultimately bear responsibility for, their

attorneys’ actions or failures. Johnson, 265 F.3d at 566. An

exception may exist for capital cases, see, e.g., Fahy v.

Horn, 240 F.3d 239, 244-45 (3d Cir. 2001), but Modrowski

was sentenced to life imprisonment.

Thus, the key inquiry is whether we should permit

equitable tolling for attorney incapacity because it is

sufficiently distinguishable from attorney negligence.

Modrowski argues that attorney incapacity is distinguishable from negligence because there is no way for a client to

anticipate or protect against an attorney’s sudden onset of
No. 02-1804 5

illness, whereas a client can check the attorney’s references

and disciplinary records for signs of negligence. Modrowski

also takes issue with the principle that the prisoner is

ultimately responsible for timely filing his petition and

argues that it is inefficient to require a prisoner to prepare

and file a duplicative petition just in case his attorney does

not file on time. The state responds that indeed prisoners

are responsible for getting their petitions filed on time

and that, in this sense, attorney incapacity and negligence

are no different—although prisoners cannot control either

shortcoming, neither situation actually prevents prisoners from filing on time and it is still their responsibility

to do so.

We conclude that attorney incapacity is equivalent to

attorney negligence for equitable tolling purposes. We will

not revisit our long-standing determination that petitioners

bear ultimate responsibility for their filings, even if that

means preparing duplicative petitions: petitioners, “whether in prison or not, must vigilantly oversee the actions of

their attorneys and, if necessary, take matters into their

own hands.” Johnson, 265 F.3d at 566. Furthermore, no

principled distinction exists between incapacity and negligence for equitable tolling purposes. Even if a prisoner

diligently checks an attorney’s references and disciplinary

records, he still cannot prevent the attorney from bungling

his case. Nonetheless, we hold the prisoner responsible for

his attorney’s bungling. Likewise, a prisoner cannot prevent

his attorney from becoming incapacitated, and there is no

reason, however unfortunate the result, not to hold the

prisoner responsible in this type of situation, as well.

Modrowski cites several cases from other circuits suggesting that filing deadlines can be equitably tolled for circumstances outside the bounds of ordinary attorney negligence.

These cases, however, are unpersuasive because none hold

that attorney incapacity alone is grounds for equitable

tolling in the collateral relief context. Furthermore, we have
6 No. 02-1804

rejected the reasoning behind several of the cases. United

States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002) (§ 2255

case), and Seitzinger v. Reading Hosp. & Med. Ctr., 165

F.3d 236, 241 (3d Cir. 1999) (employment discrimination

case), hold that an attorney’s affirmative misrepresentations to a client can be grounds for equitable tolling because

such wilful behavior “goes beyond garden variety neglect,”

165 F.3d at 241. But we have held that attorney misconduct, whether labeled negligent, grossly negligent, or willful, is attributable to the client. See United States v. 7108

W. Grand Ave., 15 F.3d 632, 634 (7th Cir. 1994). Doherty v.

Teamsters Pension Trust Fund, 16 F.3d 1386, 1394 (3d Cir.

1994) (pension arbitration case), holds that a filing deadline

could be equitably tolled where the attorney filed in the

wrong forum due to his judgment being impaired by illness.

But Johnson intimates that filing in the wrong forum does

not justify equitable tolling. 265 F.3d at 565. Cantrell v.

Knoxville Cmty. Dev. Corp., 60 F.3d 1177, 1179-80 (6th Cir.

1995) (employment discrimination case), is most helpful to

Modrowski because it holds that an attorney’s mental incapacity might be an appropriate basis for equitable tolling

and remands the case for an evidentiary hearing on whether the attorney was incapacitated at the relevant time. But

even if Cantrell’s holding can be extended to the collateral

relief arena, we decline to follow the Sixth Circuit’s lead

because Cantrell provides no principled distinction between

attorney incapacity and negligence for equitable tolling

purposes.

As a final cautionary note, we mention that Modrowski

also waived the substantive claims in his § 2254 petition

because he did not brief them on appeal. See Anderson

v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002) (appellant

waived his constitutional claims by omitting them from his

brief, thereby forfeiting any claim to collateral relief). Instead, Modrowski briefed only the procedural question of

equitable tolling. Had Modrowski persuaded us on the
No. 02-1804 7

procedural issue, we still would have affirmed the district

court’s dismissal because before remanding a case based on

a procedural error, we must decide whether the petitioner

has a decent chance of success on his constitutional claims.

This we cannot do without some argument on those claims.

See Beyer v. Litscher, 306 F.3d 504, 507 (7th Cir. 2002).

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-10-03